People v. . Creasy, 236 N.Y. 205

SEW YORK CRIMINAL XL. VOL. REPORTS, OF COURT APPEALS.

July 1923. THE PEOPLE v. WILLIAM M. CREASY.

(236 205.) N. Y. Duty Appeals degree Court Murder (1) first — of to reverse JUDGMENT OF OF IRRESPECTIVE WHERE CONVICTED CONVICTION, EXCEPTIONS, NOT HAVE DEFENDANT DID FAIR TRIAL. Appeals, Where upon the Court of consideration of the record in case, capital reaches the conclusion that the defendant not have a did fair trial that errors such a to prejudice substantial character as committed, (Code Proc., rights 528) were the statute Grim. § imposes duty the reversing judgment ordering conviction irrespective exceptions new trial whether or not taken. were prosecuting Same —Reversible error (2) for to refrain FROM CONVEYING TO COURT INFORMATION DURING WHICH THE TRIAL, MADE TESTIMONY PREVIOUSLY INTRODUCED INADMISSIBLE. HIM BY Where, motive, upon question as bearing the there was introduced part of prosecution purported in evidence on the a letter to have trial, been for girl, written whose murder defendant onwas permitted thereafter a testify witness was to to the contents of a certain correspondence theory handwriting on the card that was in same letter, it is error for the prosecuting attorney reversible to refrain conveying from .to court during information which to him came proving trial that handwriting the letter was not in the of the defendant. permit expert testify Same —Error to witnesses to that (3) in their NOT OPINION WOUND WAS SELF-INFLICTED. THE jury say for the to whether decedent committed suicide or the therefore, permit, expert killed To to testify her. witnesses opinion in their the wound not self-inflicted constituted sub- stantial error. jury Same charge to —Error court refuse (4) COMMITTED WAS BOUND TO PRESUME DECEDENT SUICIDE THAT UNTIL IOJ PROVEN BEYOND REASONABLE DOUBT WAS NOT PRESUMED WAS Á DEFENDANT DECEDENT. TO HAVE KILLED charge It was error for the court refuse was bound not come presume that decedent committed suicide and did to her beyond proven it was the hands of defendant. Until reason- death at PEOPLE V. OitEASY.

able have presumed doubt defendant not to killed decedent. in presumption apply does take own does not that one not his life capital case. by (5) letter written Same —Error to receive in evidence decedent TO PARTY ALLEGED STATEMENT BY DEFENDANT. THIRD CONTAINING reception third by The evidence a letter written decedent to a of party alleged by an state- reciting statement defendant was error. The or parte, knowledge made without the consent ment was ex defendant, way upon him. binding and in no permit testify parts (6) witness to of letters of Same —Error to to TO TO READ. DEFENDANT DECEDENT WHICH SHE CLAIMED HAVE People to permit testify also a witness for the error saw- assisting- destroy when she was decedent to letters of defendant she expressions more them to that letter of one or of similar the decedent, read permitted further she was not where she testified that expressions which she simply the letters but the referred. entire or are in evi- from letters documents not receivable Garbled extracts might entirely the of such letters or documents dence since balance expressions explain used. or the destroy prosecuting Testimony by (7) Same — statements summation REQUIRING ATTORNEY REVERSAL ON GROUND DEFENDANT DID NOT HAVE FAIR TRIAL. by testimony of prosecution The introduction evidence the defendant, custody, alleged by taken being made into statements after decedent, statements, made, which if district as to his relations with the true, together im- testimony possible with attorney knew' were not women, habits, personal proper with other relations of defendant might possession an which liad in his article be used to that he attorney in his conception, by and comment the district prevent thereon summation, bearing upon and comment no testimony jury prejudice the of which was to only possible issue tlie effect defendant, judgment of conviction against require a reversal of trial insured not -have the fair upon that defendant did ground crime. It was also person the commission every law accused of single summation to out in his unjustifiable for the district by name. jurors them and call

(8) Same. evidence was stricken fact that some is this affected Nor disregard it where jury told to the trial out the close of before degree certainty did disre- any it cannot said materially not affect its verdict. gard that such evidence did it or 1923; 13, 1923.) 9, July May decided (Argued

524 XL. VOL. TOEÍC OBIimSTAL REPOETS, STEW ren Court of the Nassau County from judgment

Appeal the defendant a verdict 1922, convicting dered October upon murder in the first of the crime of degree. M. A. Uterhart and Schaeffer, appellant.

Henry Alfred defendant’s failed to guilt beyond prosecution prove estab of evidence doubt; reasonable and the clearly weight 11 R. I. Fontana 319; v. lished his innocence. (Kinney Flynn, 214 N. Y. 182 v. Fontana, 717; Buffoni, v. Div. App. People 37 32; Commr., Daniel v. Williams v. 53; Conner, Ky. Op. 455.) Y. N. Y. E. R. R. N. 680; Co., S. W. Roberts v. Dr. Dr. The erred Schultze court permitting Jaques, William A. as in their that, Jones to testify experts opinion, Edith did not commit suicide. v. Standard Oil I,avoy (Moran 211 N. Co. v. 216 N. Y. 187; Y. Co., Ramapo Mfg. Mapes, trial court the district attor The 362.) erroneously permitted in his to state that he would show that the defend ney opening ant had that he had had sexual intercourse with stated falsely v. N. the deceased. 214 Y. v. Buffom, 53; (People People 168 N. v. Molineux, Becker, Y. 210 N. Y. 264; 274; People v. 200 N. Y. v. 218 Conrow, 356; People People Manganaro, N. Y. The cross-examination the district was 9.) by attorney allowed to all reasonable bounds and proceed beyond permitted to acts of collateral miscon multiply questions duct for the solely purpose prejudicing jury against defendant. v. 232 N. Y. (People Slover, 264.) The summa tion of the district was a heated to the appeal prejudice passion statements jury, containing not supported by evidence, presents reversible error. v. (People 158 N. Y. v. Fielding, 542; People Grunwald, 115 N. Y. 520; v. Y. People Mull, 167 N. 247; Bessetti v. 101 Ind. State, 85.) The refusal of made requests on behalf charge of the defend ant the trial court constituted reversible error. v. (People 192 N. Y. Dinser, 80; v. 42 People Mich. Knapp, Don 267; 525

I’jEOPLE V. GREASY. 5 Mont. Hanna, v. Montana 21; 95 Pa. St. v. Commr., aldson 248.) Wood, of I. Weeks, Attorney (Charles District

Charles R. the defendant The guilt counsel), respondent. the verdict doubt a reasonable proven beyond conclusively Y. 215 N. v. Becker, conclusive. (People should be v. Suther 361; People N. Y. v. 195 Sanducci, 126; People in'evidence receive error to It was not 154 N. Y. land, 345.) self-inflicted., the wound as to whether of experts opinion 424; Y. Dougherty 118 N. v. of Brooklyn, Wycklen City (Van 136; 125 N. Y. v. Fish, N. Y. Milliken, 527; 163 People v. 86; N. Y. People R. R. R. 195 Co., v. N. Y. C. & H. Harrison L. 146 v. G. & Co., 109 N. Johnson S. Willson, 345; v. Y. v. 6 Cr. 155; v. Park. Washburn 152; Y. Gardiner N. People, 65 Lee, v. Conn. 585; State Hun, Nat. Accident Society, did not err v. 9 Okla. Cr. court Miller 265; State, 255.) contents of letters writ evidence secondary admitting had been ten to the deceased which destroyed. the defendant- 90 N. Y. 683 280; ; v. 70 N. Y. Mason v. Lord, Libbey, (Steele v. Pearson, 269; 8 Misc. Rosenbaum Podolisky, v. Dearing Misc. The summation of the district 614.) to the all and contained respects proper, nothing prejudicial v. 224 defendant and reversal. Esposito, requiring (People Y. 370; 9; Wolf, N. Y. v. 218 N. v. People Manganaro, People 64; 247; 183 N. Y. v. N. Y. v. Field Mull, 167 People People 232 Y. 264; 158 N. Y. v. N. ing, 542; Sloven, People People v. 231 N. 216 N. 111; 565; Y. v. Y. Dixon, Watson, People Conklin, v. 210 N. Y. v. 175 144; People Hartigan, People 333.) N. Y. trial not court did err its charge given, nor its v. 232 N. Y. Radcliffe, refusals to charge. (People Sutherland, v. 154 N. Y. Hendrickson v. 249; 345; People 31; 10 N. Y. v. 161 N. Y. Ferraro, 365; Peo People, People 221 N. Y. v. 62; Sanducci, 361; v. 195 N. Y. ple Seppi, People v. 194 N. Y. v. 148 251; People Farmer, Feigenbaum, People 526 NEW YORK CRIMINAL VOL. XL. REPORTS, N. Y. v. 139 N. Y. 636; Johnson, Where People 358.) violent death is the result either of accident' or appears suicide, suicide. Trav v. presumption against (Mallory Y. v. Co., elers’ Ins. N. Bernard Home 52; 47 Protected Cir 161 v. cle, 59; Soc., Hun, Div. De Van Com. Trav. 92 App. Y. 157 N. Ins. Co. v. 256, 690; McConkey, Travelers’ 127 U. Peck v. 52 667; S. Acc. Equitable Assn., Hun, 255; Ger v. main Life 26 Hun, Ins. 30 Brooklyn Co., Hun, 604, 535; v. Preferred Acc. Ins. 381; 182 Div. Hodgson Co., App. Herschlcowitz v. Mutual Life 93 Co., 522; Ins. Misc. Butter v. field State, ; Misc. 273 White v. Prudential Ins. Co., 260; Div. Landon v. Preferred App. Co., Acc. Ins. 43 App. Div. 487.) J.:

McLaughlin, About 10:30 o’clock the 23, of June Edith evening y. teacher one schoolsof Lavoy, Y., public Freeport, n diedin an death, her. Her apartment occupied by was caused bullet fired from a calibre automatic twenty-five revolver which entered her about right temple two one-half inches in front of and two in a inches line perpendicular above the n opening or auricular canal ear. The right course of the bullet was backward and inward, upward. passed through to a brain about point three inches above the auricular n canalof ear the left and one and one-half inches back of it, in the inner side lodged the skull. Death was almost instantaneous. The in the room only persons when the shot was fired were the defendant and Miss The revolver Lavoy. to him. belonged He either shot her or she committed suicide. This was the for the question determine. The district so stated in his .attorney 'as did summation, trial learned in his judge Defendant was charge. taken into immediately n custody, indicted, tried and subsequently convicted of murder in the first degree.

The to this question presented court appeal whether 527 V. CREASY. n conviction trial and his a and impartial had fair evidence. legal obtained by were record voluminous of the consideration a careful very

After a fair trial did not have that he conclusion I have reached as to character prejudice a substantial of such that errors and committed. were rights under court, this upon statute imposes In a case the capital, of con a judgment of reversing circumstances, duty such not of whether or trial, irrespective a new viction ordering 528; Criminal Procedure, of § taken. were exceptions (Code 196 v. 393; Jackson, Y. People N. v. Hing, People Jung Y. 542.) N. 357, 362; People Fielding, N. Y. v. me to be indicate seem to what

It is order necessary, n some the state a few trial, and the unfairness errors, from one of the of the facts. Miss Lavoy graduated about twenty years age normal schools of the State when in a school a as teacher public thereafter position accepted about two N. where she Gloversville, Y., taught city who then defendant, While she and there, years. through became acquainted about years age, twenty-eight In his written application matrimonial club. correspondence mar that he never been therein he stated membership untrue, which was as was at time separate ried, living from his she obtained wife, having judgment apart education, He limited ordinaiy separation. person above and moral character not reproach. superin ability, Miss attention him, tendent of the club called Lavoy’s him letter: she wrote the following thereupon

“ 26 Allen St., N. Y., “ Gloversville, " 20th, 1920. March to me been recommended Sir. —As have you Dear Club, 111., Standard gentleman Correspondence Graylake, inclined and lady correspondence matrimonially desiring YORK CRMIMAL VOL. XL. REPORTS, STEW in and under recommendation of J. W. view, object me I Schlosser, who sent to- your description, permission beg If this meets with I will open correspondence. your approval be to hear from in return. in pleased you Thanking you advance,

“ I am yours respectfully, EDITH E. LAVOY.” (Miss) Defendant answered this letter and correspondence, in this informal into a attach- soon opened way, ripened strong ment. letters, Her of which were introduced in evi- many dence, indicate she was a emotional, highly hysterical romantic his a few of letters introduced in girl. were Only evidence, the witness Mrs. Sheldon that a testifying few before Miss death her ‘in days Lavoy’s she assisted them. destroying

After her completing G-loversville,she engagement accepted as a position teacher at H. and at the time of Ereeport, Y., her death had about finished second, her and entered into a contract for another In year. October, 1920, who defendant, was then in a railroad employed repair as a shop Kentucky machinist, at Miss invitation, Lavoy’s went to Freeport first time met. This they visit, indicated her letters his return to following seems Kentucky, to' have in creased the favorable she had impression formed previously him their He correspondence. visited her in Free- again port and in January April, at her home August N. Tupper Lake, Y., when their engagement formally announced and with by, of, the consent her parents. Upon return to her he sent Kentucky diamond engagement ring. In she September, 1921, returned her school at but Freeport he did not see her again, though letters frequent passed between them, until 1922. February, this Upon their visit, marriage, which, to his according was to have testimony, taken place July, 1922, was postponed for a year, and this fact was cor- V. GREASY. March, of 19th On the letters. one of her roborated by its receipt, and following letter affectionate him a very she wrote in early March or last of defendant, either according corresponding; stop her better they he wrote he thought April, former marriage of his told her time, for the first that he then, he had what believing not that she, evidently divorce; the' 23d her. On to see him to Freeport asked to come written, evidence, was introduced ho her a letter which of wrote April him had theretofore written she which would seem to indicate respects It a many rambling, breaking engagement. a time at that it-was written and he testified letter, incoherent The sub- of intoxication. when he was over period getting told the truth. it to indicate he stantial of would seem part the 30th In there on he went event, Freeport, any reaching went, at this visit or 1st of was during they April May. “ her in the record the Kiss- suggestion, place designated and while or that he said ing there, vicinity, they Bridge,” with the revolver which practice subsequently indulged target her on her death; caused that their back to apartment, way hold of coat and he took revolver from his his dog grabbed for the that she then it; pocket purpose shooting got posses- sion of the revolver and retained until about the 1st of June he told her that time what he had at following; previously he her, her; written could not marry judgment his had a final from wife not been made separation judgment of divorce and he did not want her him As to write more. any to this he was letter from corroborated special her, delivery “ Billie— n mailed 12th in which Dear on the she said: May, Yon said didn’t want me to write am you more, so any just he good night.” her, saying following day telegraphed him, she did not write been to the asking why saying dollar. He races lost last was corroborated as to her of the revolver several her possession letters, having she return it, and on June 1st he promised telegraphed “ her as follows: I would if Edith, feel better satisfied you SEW YOBIC CEIJIim XL. VOL. BEPOBTS, would send me that You have so often gun promised. you know On June 4th she why.” acknowledged receipt and at the him. telegram, same time said she had sent it to Her him letters to from the latter down to about part May the time of her death indicate she was very unhappy several times a despondent., wish that she could expressing die and end it all.”

The defendant testified that a strike had been called where he was shop which was to on the 1st of employed, begin that view of that fact he decided July; to his quit employ ment in the to Montreal and obtain a Kentucky shop, go posi if tion there he could; that he his trunk, accordingly packed dress-suit case and a and in the latter all of grip, Miss put letters which had Lavoy’s he tied and all of previously up, had she things him, with the intention given Free- going to port them to her before returning that Montreal; going he checked his trunk to the Grand Central station, York, Hew took his suitcase and grip him, started for Hew York; that when he reached there he checked his took the suit grip, case and went to that he there hired a Freeport; room in a and aboift 12 boarding house, o’clock went to Miss Lavoy’s school and remained with her the noon during intermission, they she lunching together, sent out for having some sandwiches and ai that he then pie; made an to call on arrangement her that at her evening which he apartment, did, remained with her until about o’clock; that he then went his room, where he remained until the when following he met her morning, on the street and went with her to the school; that he then arranged to call on her that and on the next evening to with day her go York; Hew that after her at leaving the school he went to the Grand Central his station, it got took to Penn grip where sylvania station, he checked that it; he did this for the purpose having near when conveniently reached they city when he following day, to return to her her going letters and the she had things given him; that after checking V. CREASY. called upon and that evening' he back Freeport went grip witness called, when o’clock; her about 1:30 three room-mate, her present; Mrs. Sheldon, out, went Mrs. Sheldon time when room some remained in the in the room remained when she 9 and 9 :30, between returning room and the adjoining and then went into- for a few minutes she and before out, went that after Mrs. Sheldon retired; in the sitting a sofa Miss Lavov laid down on returned, he and Sheldon heard Mrs. there until they remained room; they sofa, and sat on the side in, when coming they got up on sofa. laid down and after she retired they again and Mrs. Sheldon Miss Lavoy The apartment occupied by Mrs. for teachers. floor house was on second rooming room, where Sheldon and Miss shooting sitting which access was had a bedroom through took place, adjoining, to their room was bathroom; sofa, upon the sitting its head; was cover with some or cushions at or spread, pillows a chair, about feet the sofa was or ten from the head of eight a from and further a desk. Across hall the little the away a Miss room was witness sitting occupied by bedroom off his to defendant’s he took Duby. testimony, According coat, in the and it on the back of the chair early evening hung room; the he that after Mrs. Sheldon had retired sitting and Miss laid the on he down on she the inside and Lavoy sofa, on the out; that after there a time short she went up, lying got into the and a bathroom, of which she got glass water, part drank and he the that after drank rest; she the water she the the on stand or desk near his coat placed was; where glass that he then her him asked some which were bring cigarettes in his coat did that she so and then laid down on pocket; they the sofa similar to the one which were position they before she that Miss water; got lying partially on her left with face on or on side, her that he his; partly on his lying stomach or with arm right side, under right his head or on the on the and pillows sofa, his left arm over VOL. XL. YORK CRIMINAL REPORTS, XEW in this and while posi- that he

her; dropped asleep partially revolver; tion startled report he was suddenly hy un- ascertained she was sofa, he from the up immediately got from the and blood across her forehead conscious, saw running her and down over left eyebrow; side towards the left right Sheldon’s room and said went into Mrs. immediately “ ” God, her: Edith has shot Mrs. Sheldon herself; My went into the room and he then went to immediately sitting Miss and her that he then room told the same Duby’s thing; ran and told Smith, downstairs Miss keeper rooming and a Miss who was house, Walsh, on sitting piazza her, what had them send a doctor, occurred and asked did His this they by telephone. respect testimony corroborated such persons, Mrs.' Sheldon that she testifying was awakened the revolver almost in- hy report the door was at stood the foot of stantly opened Billy bed me. He calling said, Mildred, Oh, ‘ Mildred, my God, ” Edith shot has herself.’

Dr. Runcie, the health officer of the village Freeport of the'Nassau and Dr. attending surgeon Hospital, Newton, practitioner ánd Freeport at attending surgeon Hos- Mercy pital, at to the call. Hempstead, responded Both doctors arrived about the time same and within three or four minutes after the took shooting place. People’s witness Stevens, entered the room about the passerby, same time, or shortly before the doctors arrived. Both doctors, the witnesses Stevens and all as to the Duby, agree position when body entered they room, which was substantially same as the it testified was when he from the got up sofa. testified They that Miss was Lavoy on her left lying side, with her arm across her her right face body, turned towards the left side, and the revolver was on the lying- sofa underneath her hand, between the right and waist hip line; that the shell from which the bullet was fired was found near the center of the a few room, feet from and in front of the sofa; that blood was

PEOPLE V. CEEASY. and left eye- her forehead across from her temple right flowing her clothing that neither sofa; on the down and brow, dropping and disarranged; were on the sofa nor the cover or pillows or occurred, that a struggle to indicate there was nothing was fired, except shot after the had been moved that the body head the turned testified they Runde and Ecwton Doctors other the right come out on if bullet had to determine the was the blood changed the course of so side, doing was time the defendant that at this side; ran down on the right in a in a sobbing very hysterical chair, sitting apparently gen- Rnncie, Dr. was which, perfectly condition, according offered People there was uine,” testimony by though it was not. officers few after shooting, police

Within a minutes very into arrived and took the defendant custody. and detectives they The arrived thereafter. district shortly assistant attorney at of Miss taken into a room the rear Duby’s defendant was hours a searching and there for several room, subjected and the facts examination as to relations with Miss Lavoy he was After such examination connected with the shooting. office, ques- taken to the district where he again attorney’s such to an examination not tioned, subjected only by him. but one who searched officers, Fogarty by Fogarty, York and an ex-member of the force of the of Mew City police In was, time, at the for the district attorney. early acting of the 24th of while still in district June, morning attorney’s and his he was the district office, interrogated attorney again by In assistant. made to the detec- police officers, statements tives and is claimed them that defendant stated Fogarty, by on he had been intimate with Miss several occasions. or he had statements, The fact he made such been denied him at trial her, intimate with positively him and to district when he interrogated prior untrue, thereto. If such statements made, were the same were and that fact was demonstrated conclusively autopsy, OT VOL. XL. YORK CRmiXAL REPORTS, him

because she had never been intimate or other any with district, at time she The man; that the died she was virgin. made to much defendant’s statements as his. attorney alleged her in his the closing to intimacy opening jury. After the defendant had been taken to the district attorney’s in officeand there was found one of his searched, pockets coat an article which could be used to This prevent conception. article in was introduced evidence and commented in a upon manner hereafter district in his stated summa- by tion to the Ho whatever was offered Hiss jury. proof ever saw article, this knew that he had or that he Lavoy it, ever to use it. attempted which was submitted to the and the question sole jury, Ias have

question indicated, was whether already the defendant killed Miss or whether she killed herself. All the evi- Lavoy dence was purpose to determine enabling that issue. The broken was the engagement only suggestion aof motive, either on the kill of the defendant part Miss or on her Lavoy, take her own life. As part bearing upon of motive on the question there part defendant, introduced evidence Exhibit People’s letter alleged have been written Miss to the in answer ato him, from telegram stated he had lost his last dollar at the This races. letter received in evidence upon positive unqualified witness testimony Miss who Shoemaker, was the of Miss principal Lavoy’s school, it was in her It handwriting. letter only produced which, any indicates way, engagement broken Miss This Lavoy. exhibit, therefore, became a very important piece evidence. reads follows: Billie. — Tour letter rec’d. and I today, have no “Dear words which to tell how you surprised shocked I am to know of the state must you be to do the things are you doing. “ How for own your sake as well as mine, pull yourself together back go your job down to work again —settle 535 V. CREASY. how don’t realize the you rest. Perhaps and let Time settle is its effect it having andme worry this is affecting you all me— on health. my “ will realize you again, are calmer and yourself When you it right think quite I have been with you you honest how —do ? that honesty to blame me for very “ % Can forced love he “ ? love you who did not Would want wife you “ (cid:127) it of it & for I care keep for will take good As the gun, you. “ no do rash do, me—if will you love you Billy, say you you man out for a the strong and wicked is not way thing —that weakling— or a That the a coward and soldier. way I life. In tho’t strong- afraid to face the old you one days, know that I was mis- man —not make me a weakling —don't fool- I but be so taken. lost the money why am sorry you more and work—that will back to help you go your job ish— all this, but, I am for again, than other thing. Billie, sorry any all have to. brace and do up your part —we “ letter will Write I that the me soon. again sincerely hope me are normal self again. tell working your you “ I am that God best sending you my thoughts praying Me.” will open the your eyes right. Sincerely, evidence, People’s After this letter been received Bellevue, of a house at Hurt, witness Mrs. keeper boarding like a the defendant boarded for year, where Ky., something he left June, 1922, was that on 20th of permitted testify he that about house, Montreal, Canada; her saying- going saw, he left she the dresser his room, correspond- on day She ence that when he left the card card; disappeared.

then shown Exhibit and testified that it such card were in the same She was person. handwriting asked to and 6n the card, state contents of theory it was last seen defendant’s room the started Hew day York, so, objection to do permitted against excep- XL. XEW YOBK CBIMESTAL VOL. BEPOBTS, tion of defendant’s counsel. She said was postmarked “ ” and and that which she “ Freeport signed Edith,” part I am remembered read: Dearest Here is where Billie, saying ,the counsel denied forever.” Defendant’s was also goodbye as her to her privilege cross-examining qualifications to Miss testify handwriting. importance Lavoy’s can It indicated, this at once be piece appreciated. eyidence in when read Exhibit 32, connection especially People’s but that was broken not Miss engagement by defendant, by indicated a inference of a Lavoy. also possible by motive on the of the defendant. part

Defendant’s stated counsel, his to the he jury, opening would prove Exhibit was not Miss People’s Lavoy’s never that defendant received it. He did handwriting prove, that was not in Miss cleárly conclusively, Lavoy’s and I am of the handwriting the defendant never opinion received it. He testified it not in Miss handwrit- Lavoy’s and he had never ing received or had it in his it, possession. Mr. Horton, a well-known testified it handwriting expert, in her not and his handwriting demonstrates it to a testimony motion, There are set certainty. out used on the papers for a new trial of her photographic copies concededly genuine as well as Exhibit and an handwriting, thereof inspection indicates that it did not need a to determine handwriting expert that Miss never wrote Exhibit 32. Hot but only this, after defendant’s counsel had stated he would it was not prove in her his handwriting, affidavit used on the according motion for a new the district trial, said to him, after the attorney open- that if he ing, put on expert the stand to handwriting testify it was not in Miss Lavoy’s handwriting, he, the district attor- would Mr. ney, produce Carvalho, well-known expert, who would it was. After testify Mr. Horton had testified that Exhibit 32 was never written Miss district attor- Lavoy, Mr. Carvalho ney employed to determine whether or not she had written it. This was while the trial was in progress Y.

PEOPLE V. CEBAS Car- Mr. his testimony. before Mr. Horton completed for a new trial, among the motion his affidavit used on valho, the district attor- that was other stated employed things, with con- Exhibit 32 connection to examine People’s ney Miss handwriting, Lavoy’s cededly genuine specimens him the led that his examination Shoemaker’s; also Miss Exhibit 32, was the author of conclusion that Miss Shoemaker assistant; district or his and he so informed the if asked Miss Shoemaker she after such conclusion he reaching that she had that he then not; had written it and she stated her hand- him with somenew asked her to furnish specimens did, at which she and after dictation, written writing, “ You wrote this such he stated to her: examining specimens ” M. Shoe- Exhibit said Edna 32; thereupon and that maker denied to that she had written it; deponent and, then called Assistant District Edwards deponent Attorney Mr. to Edna M. stated to Shoemaker, Edwards, pointing * * * is the author of this letter. That Mr. There then to Edna M. Shoemaker and said Edwards turned ‘ * * * the truth did write that let- here; We want you ’?ter and that Edna M. Shoemaker then admitted that she had informa- written Exhibit 32.” People’s Notwithstanding Exhibit tion which the district had thus obtained that was not Miss and that the contents Lavoy’s handwriting, card as testified to witness correspondence People’s Hurt had been on the that it was admitted, erroneously theory in the same as and that such exhibit handwriting Exhibit. inwas Miss nevertheless the information Lavoy’s handwriting, was not to the court and no effort was made to have conveyed Exhibit 32 or the contents of the card stricken correspondence from record. I

This constitutes what as error number one, designate and of other necessitates itself, independent error, any trial. This was an so fundamental, substantial, new error so that a verdict of murder in the first not to be degree ought per- XL. VOL. KEW YOBK CBIMIXAL BEPOBTS, would that a verdict guilty stand. Ho can say

mitted to one received. not been if evidence had been rendered such have one sub- I am of the equally In addition this error opinion Jones, witnesses stantial was committed permitting the objec- and Sehultze testify, against and Doctors Jacques in their opinion counsel, defendant’s tion and exception under This was equivalent, was not self-inflicted. the wound the defendant facts, of this them case, testify permitting came to her death that Miss was The fact Lavoy guilty. were in her head she and defendant bullet wound while as The sole question, alone the room was not disputed. fired the fatal defendant or she before was whether indicated, in his to the so The summation jury, shot. district attorney, He said: And gentlemen, lastly, you may stated. finally, Either Miss in this case is this. the proposition simply say, M. this Edith herself that William Greasy, shot or Lavoy night trial in his final her.” The instruc- defendant, killed judge, “ and the case, tions to the said: this question jury, down to clear did issue, is, comes very only question, ” kill her ? Edith kill or did the defendant This herself, had to determine and ultimate fact which they to do so as the so-called were were just competent experts. The revolver which the bullet fired been from pro- It had it not a duced. been made to that was contact appear wound. The the bullet the head, where entered as well place course, as its and where it had been to. finally testified lodged, trial, From these and the others at the facts, developed without the for the slightest and doubt to unquestionably jury whether committed the defendant Miss suicide or say Lavoy killed her. subject Facts are evidence. appropriate and Inferences conclusions to be drawn therefrom are for the is never when Opinion allowed, evidence from jury. except the nature of the the facts in such a case cannot be stated man- ner form an as to enable the accurate there- jury judgment and no than is from, better evidence obtainable. such.opinions 539 V. CREASY. v. 225 N. Y. Schutz 284; (Noah Bank, Bowery Savings v. v. Under Union Co. 181 N. Y. 33; People of N. Y. Ry. City, Y. Keefe 507; 142 N. Y. v. N. hill, 38; Hubbell, Ferguson v. Id. 430; Armour & 258 Ill. v. Co., 28; People Curtright, Evidence, Hite v. 149 Wis. 1 Greenleaf on Keene, 207; § and note.) and fundamental but one so error,

This was not a technical influence the did, substantial that might, undoubtedly in its verdict. jury reaching the fol- in to charge refusing court erred 1 think the Next, “ I ask your was taken: an which exception

lowing request, be is the defendant presumed that since Honor charge doubt, a reasonable beyond until proven guilty innocent of the evidence consideration their to commence are bound jury sui- committed that Edith Lavoy case presumption defend- hands of this at the to her death and did not come cide killed Miss have not to ant.” The defendant presumed It doubt. a reasonable it had been beyond until proven Lavoy take his own docs net that one is true there is presumption in life insurance been life. This rule has usually applied I have far as has noven-been so applied, accident cases. in a case. Certainly pre- to discover, been able capital dead, than as to the as to the is greater sumption living as to the former as to be indulged every presumption the facts dead need no the latter. The presumption; against an time has unchange- as to them arc which fixed, placed upon do. This my end; request, able and immutable living it was To refuse equiva- should have been charged. opinion, mantle to the defendant the of protection lent to denying its him delibera- the law and allowed the to commence gave his innocence. This in favor of tions without a presumption the force and the trial court should have appreciated was wrong requested. charged request court erred evi- I also of the admitting am opinion to Dan Sherman (Peo- the letter written Miss dence- REPORTS, VOL. XL. YORK CRLMIXAL XEW 1922, written on May This letter was Exhibit 21). pie’s In after it, her in Freeport. was visiting when he came He said she said: there, defendant was stating or die To live with me in mind. objects here with two only up Ho sun-down.” to a decision before me and there had be It was effect this upon jury. can tell what one possibly consent made without the or statement, knowledge an ex parte him. It ought in no upon of the defendant, way binding for some It is true no objection, been received. not to have but evidence, made to its reason, reception unexplained the error. fact this court cannot overlook notwithstanding Mrs. witness erroneous to permit People’s It was equally Miss was assisting Lavoy that when she Sheldon testify them in one or more of defendant’s letters she saw destroying in Miss letter similar to that contained Lavoy’s expressions was not Sheldon testified she permitted Sherman. Mrs. to which she letters, entire hut simply expressions read the are not from letters or documents referred. Garbled extracts the balance of such letters or docu- receivable since evidence, or used. ments entirely destroy explain expressions might but it is to con- There are errors, unnecessary other alleged another trial. Those not occur on them, sider since they may out seem to me to reversal require judgment pointed of conviction. I am of conviction must of the opinion judgment

Finally, did have a fair trial. he reversed because the defendant not accused of the commission of The law insures to every person to rules of meant, crime a fair that is trial, according in so far as have been modi- law, the common the same except fied statute. By after taken into defendant, according being custody, of certain witnesses for the stated that People, testimony intimate with Miss on several Prior

had been occasions. to the trial he told the district he had never made such true, were not and he testified at the statements, they .so V. CREASY. his opening the time knew at The district attorney trial. had the autopsy true and not statements were The only pos- that fact. established conclusively clearly at the attention in jury’s therefore, calling sible purpose, had made such the fact that the trial to beginning him. The proof against to create prejudice was statements, such making defendant’s as to the district attorney (cid:127)offered by I not this do In same saying for the purpose. statements was to have questioned it would not have been proper mean that for the reference thereto with cross-examination, on defendant, I refer to which The proof his credibility. purpose testing case. of the People’s in first instance as part was offered of fairness the line also overstepped The district attorney married the fact that defendant when he before the jury got four or five months and within seventeen age girl years occasion, on one had, gone she had a that he child; thereafter man and to a hotel with a married woman registered co- made for which he was arrested wife, subsequently husband; in an action for divorce brought by respondent and that when habits; that he had certain disgusting personal there was he was after taken into searched, custody, being of his coat an article which found one of the pockets might made be That the district used prevent conception. effective use of this article his summation can be appreciated here therefrom. He said: He came short quotation up with the of his which he had his trade, implement pocket. What man carries those damnable around respectable things ? Did with tell me ever know own him, you anybody your him? those What do .acquaintance carry things you he came here armed with that for, devilish .suppose up thing if it him his was not to out and ruin this help carry purpose if ? Thank he could not do it and God, Lavoy girl, possible thank died a But- God she virgin. purpose apparent the same. He came for but he could just that, not it out carry and then like the coward who killed with a kiss, he sneaked VOL. XL. NEW YOBK CRIMINAL BEPOBTS, behind as she there —because I

around her some position doubt not I could her there and not tell no you got —he did some and with this where she not revolver, down position a, I killed with it, co'ward, see let it like the who go, say, man with a kiss; whereas a brave kills smile.” This-article no had the issue no was made being tried, bearing upon proof that Miss ever saw it knew it, or its was to the effect defendant. only possible prejudice jury against The statement was uncalled for and It quoted unjustifiable. district the his sum- equally unjustifiable to mation and call them name. Such jurors out single prac- has tice been condemned in jurisdictions other v. (Bessette 101 State, Ind. not to receive the 85) of ought approval this court.

It is true the to evidence as some of I the things have indicated as unfairness was, before close of showing trial, stricken out and told to but it it, jury disregard to tell what extent impossible have influenced the they may cannot be said with of jury. certainly any degree certainty that the did or that jury disregard such evidence did not them, its affect verdict. v. materially at (People Fielding, supra, 551; v. Y. 346; 157 N. p. People Corey, 332, Brooks v. p. Rochester 156 Co., N. Y. v. 244, 252; Ry. p. Florina, People N. Y. 545.)

For the reasons I am the foregoing opinion judgment of conviction should be reversed and a new trial ordered. Hogan Ch. J., and Andrews, JJ., concur; Car

Hiscock, zo, J., concurs in result in memorandum as follows: do J., concurs the result .upon the ground jus-

Cardozo, tice trial: new requires First, because error of the court evidence as an receiving proof motive instrument found in prevent conception defendant’s pocket; second, because the failure to strike from the record the statement of the witness Hurt as contents of a postal after card, TAYLOR V. SMALLEY. EX EEL. basis that the supposed had demonstrated trial of the progress unreal; handwriting the defendant’s for her knowledge as to misconception by of possible because and, third, and the omission Exhibit the authorship instruc- such by adequate avert misconception trial judge tions. affirmance dissent and vote for JJ., Crane,

Pound Code of Criminal 542 of the of section under provisions Procedure. etc. reversed, of conviction

Judgment COUNTY. SUPREME COURT —SENECA August, 1923.

THE EX REL. NETTIE CASE TAYLOR v.

BURT E. SHERIFF. SMALLEY,

(121 331.) Misc. magistrate corpus (1) of —Jurisdiction commit defendant Habeas TO AWAIT ACTION OF GRANDJURY. depositions upon a testimony hearing taken before a Where charge degree magistrate present of murder in the first sufficient from proof testimony of the there is some the commission crime and sufficient cause to magistrate might which the determine there was magistrate acquires jurisdiction his guilty, the believe committing grand to await the action of the the defendant action upon corpus. ordinarily reviewed habeas be will not Bight (2) subpoena examine witness of defendant Same — BY DISTRICT ATTORNEY. EMPLOYED magistrate boy twelve 'before the Upon cross-examination deposition by a attempt his demonstration to discredit years age in an knowledge, general defend- mentality and lack of alleged deficient length at much and seem- into those matters permitted go ant was on, Held, hoped subject. developed that could be ingly all kind permit of that that he would not more magistrate ruling to an examination of the wit- confine counsel testimony and would

Case Details

Case Name: People v. . Creasy

Court Name: New York Court of Appeals

Date Published: Jul 13, 1923

Citations: 236 N.Y. 205; 140 N.E. 563; 40 N.Y. Crim. 522; 1923 N.Y. LEXIS 876

Court Abbreviation: N.Y.